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Nine Mile Corner: On second day, Erie-Lafayette spar over burden of proof

By Anthony Hahn

Staff Writer

Posted:
02/15/2017 07:33:37 PM MST

Updated:
02/15/2017 07:34:00 PM MST

Lafayette City Administrator Gary Klaphake testifies Wednesday at the Boulder County Justice Center during a hearing about the lawsuit over the Nine Mile Corner development on the border between Lafayette and Erie. (Paul Aiken / Staff Photographer)

Following Tuesday's testimony focusing on the circumstances and motivations that may have led to the current Nine Mile Corner lawsuit, arguments on the hearing's second day shifted focus toward what a scaled-down development might look like.

Attorneys for the opposing towns on Wednesday sparred over potential revenue and development lost if Nine Mile Corner's plans are derailed by the suit's potential damaging outcome, and whether the burden of proof demonstrated during the two-day motion-for-dismissal hearing was adequate.

While a decision in favor of Erie's motion for dismissal could essentially free the town to move forward with its 30-acre mixed-use development, an opposing verdict would extend the contentious litigation to a new hearing at a future date.

The 22-acre condemnation suit Lafayette filed against Erie last summer revolves around Nine Mile Corner, a development situated at the corner of U.S. 287 and Arapahoe Road.

For the land parcel to be condemned as a community buffer — which would shrink the slated development plans and possibly derail them indefinitely — Lafayette's burden of proof must satisfy that transforming the parcel into open space serves the public good or purpose.

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For the majority of Wednesday's hearing, however, attorneys focused on what a scaled-back Nine Mile Corner could look like and if the development's existence with the proposed 22-acre setback buffer could even be a viable condition.

"In this case, if the condemnation parcel is removed," Karen Blumenstein, an Englewood land developer, said in regards to a scaled-down Nine Mile Corner vision on Wednesday, "as a developer I would say to myself, 'who's going to come?'

"(The revamped site) is developable," she added, "but there's probably a better site for them across the street (in Lafayette). The question is, how much revenue they would generate (with the smaller site)? In this case, not enough to entice a city to do a public-private partnership."

Across the street from where Nine Mile Corner is scheduled to be constructed, Lafayette has initiated plans for large-scale development of its own: more than 400 residential units are planned for the 80-acre SILO subdivision; paired with plans for a 21,930-square-foot commercial project dubbed Lafayette Promenade.

In Wednesday's closing arguments, however, the focus shifted to burden of proof.

"It was my understanding that when we set this matter we were setting it on a motion to dismiss," said Lafayette's attorney, Don Ostrander, who objected to Erie official's notion that Lafayette's argument had not satisfied conditions for persuasion. "They have the burden of proving what they allege here."

The case marks the first instance in which a Colorado town or city has tried to acquire land from its neighboring community through eminent domain.

"It is Boulder where this should be decided," Ostrander continued in his closing statements. "There's no place on earth that goes out of its way to create open space that way Boulder does. When we talk about competing public purposes, I think the hierarchy is pretty clear: it's creating these open-space areas so these places don't turn into an urban sprawl."

Lafayette wants almost half of Erie's 45-acre property at the corner of U.S. 287 and Arapahoe Road to provide "a buffer through open space" between the towns in order to "protect Lafayette's unique community character," according to the condemnation lawsuit filed last summer.

On the other side, however, Erie alleges that Lafayette filed the suit under fraudulent pretenses.

"What is clear is that their real priority (for Lafayette) is not to provide open space," Erie's attorney, Darrell Waas, said, "but (rather to) stop development on this property.

"It's clear what the motivation is here," he added. "It's not about preserving a community buffer, and any case when you have to make a conclusion about someone's motives, you always have to read the facts, and I think that the history and what has happened here makes that motive clear. This petition should be dismissed."

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